July 13, 2016

Why did the NYT come out against Justice Ginsburg's political self-expression?

I'm reading "Donald Trump Is Right About Justice Ruth Bader Ginsburg" by the Editors of The New York Times. And I'm thinking, there are 2 possible lines of reasoning here (and they are really different): 1. Proper judging is politically neutral, so judges ought to maintain an appearance of political neutrality, and 2. Justice Ginsburg's particular political statements are dangerous and damaging to the political cause she and the NYT support.

Knowing what you know about the NYT, you probably guessed that #2 is the right answer. But that doesn't mean the text of the editorial reveals the motivation of the NYT editors. It's analogous to a Supreme Court opinion: If the decision was made for what the author believes is the wrong reason — such as political preference — then reasons believed to be proper will be drummed up and belabored.

So I'm reading the text of the editorial with the kind of skepticism I use when reading Supreme Court cases. This is what they are saying, but what are they really doing? First, I note the predominance of Trump's opinion. Trump is right the headline begins, and they got a quote from him:
“I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly,” he told The Times. “I couldn’t believe it when I saw it.”
Trump is going with reason #1. It's inappropriate for judges. But obviously, he doesn't like what Ginsburg said and wants to defend himself in his usual counterpunch fashion. You attack me, I attack you. Going with the old judicial neutrality idea is good politics, whether he really believes judges are above politics or not.

The Times accuses him of having "hands [that], of course, are far from clean on the matter of judicial independence." (Unclean hands... that are also very small... the editors, of course, refrain from making the obvious joke. They must act lofty.) The editors cite his "lambasting" of  Gonzalo Curiel, the judge in the Trump University case. But if a litigant, like Trump, is afraid that the judge in his case is biased, that isn't evidence that he doesn't believe judges should be neutral. The problem with what Trump said about Curiel was not that Trump didn't support judicial independence. Those who support judicial independence shouldn't assume that it exists. We should be vigilant about bias and politics. The problem was that Trump seemed to infer bias from the mere fact of Curiel's Mexican ancestry.

In the case of Justice Ginsburg, Trump isn't inferring bias and politics from what group she belongs to. It's a reaction to her particular statements. It's individual. She openly displayed her political leanings and her desire for political allies on the Court and her intent, going forward, to use those allies to get to a majority that would overrule cases that recognize important constitutional rights — including Heller, the case that says there is an individual right to bear arms.

And here's where it becomes clear that the NYT editorial proceeds upon the second reason I posited above, that Justice Ginsburg's particular political statements are dangerous and damaging to the political cause she and the NYT support. "In this election cycle in particular," it's important to keep voters believing that judges will be impartial and above politics, and here's Ginsburg "call[ing] her own commitment to impartiality into question." The Times tries to pass this off as Ginsburg "choos[ing] to descend toward [Trump's] level," but she's not joining Trump, she's proving him right: Judges are political, and that's a bad thing. Perhaps Curiel didn't deserve the criticism, but Ginsburg does, and it's very irritating to the NYT, it would seem, because the Curiel incident was so effectively used against Trump, and then along comes Ginsburg displaying herself as pleased to be political.

112 comments:

Michael K said...

"Trump seemed to infer bias from the mere fact of Curiel's Mexican ancestry."

I don't agree. He was using his usual shorthand to mention the judges radical associations. La Raza, even when tempered by alleged secondary association with the term, is no indicator of judicial mentality.

ndspinelli said...

This post could have easily been cut by 80% and said the same thing. Althouse needs to read some Hemingway.

ndspinelli said...

Or maybe just some decaf.

Unknown said...

Ginsburg seems determined to destroy what's left of the Supreme Court's "Above it all, good governance, where everyone has a shot at justice" bit.

Justice is supposed to be blind. Democrats are determined to make sure that government works for them and, more importantly, against their enemies. Laws applied only one way, and they are above the law.

Well, when the law is no longer law, but just arbitrary force only ever applied one way, then there is no obligation for us to follow that "law."

But Professor, I have a question for you. Totally off this subject, but you are a Constitutional scholar.

The anti-Mormon cases of the late 1800's: Davis v. Beason 133 US 333, and so forth; the ones upholding the Edmund-Tucker act and things. Exactly what would prevent todays liberals from stripping all Christians who oppose same sex marriage of the right to vote, to serve on juries, of spousal privilege, and even from holding political office? All of these rights were stripped from Mormons because they had a differing view on marriage than the federal government. And now, once again, Mormons and other Christians are on the "wrong side" of the marriage debate. And considering how much tolerance your leftist side has shown to opposing views; can you give us a prediction as to how long it will take before the Mormon cases are used to strip everyone who doesn't celebrate same sex marriage of all their rights?

Surely it will be legal again to remove people's constitutional rights because of bad think, just like Davis v Beason (a 9-0 decision to strip all Mormons of the right to vote because they were Mormon, not because of any act they did), right?

Marc Puckett said...

Ha; I came here directly after being surprised (via Memeorandum) to read the editors at the NYT admitting that the Trump fellow is right about something; but I simply presumed that 'reason two' was the explanation.

Ann Althouse said...

"I don't agree. He was using his usual shorthand to mention the judges radical associations. La Raza, even when tempered by alleged secondary association with the term, is no indicator of judicial mentality."

He could have said that clearly and if he had, he'd have been much less vulnerable to the criticism he received. You don't get to use "shorthand" and make a statement of race/ethnic stereotyping. If it's not individualized, you're doing something properly recognized as wrong. If it's individual, you'd better make it look individual, or you don't have what it takes to be President. I'm willing to say I don't think Trump actually is an anti-Mexican bigot, but he needs to speak in a way that doesn't make it easy for his opponents to say he is. If he doesn't, he's either inept or he's trying to dog-whistle to bigots.

David Begley said...

Althouse wrote, "it's important to keep voters believing that judges will be impartial and above politics."

RBG just exposed herself - to the entire world - that she's just another politician. She blew up the illusion. Now her key decisions have to be examined as political documents and not legal decisions. New thing to teach UW law students.

Trump is on to something when he tweeted that her mind was shot. How could RBG be so stupid to blow her cover? That's what he NYT is pissed about.

Next question: Who tells RBG that she is no longer mentally fit for he bench? Her husband is deceased. A law clerk? King Tony? Sandra Day O'Connor? Her kids (if she has any)?

Fernandinande said...

The problem was that Trump seemed to infer bias from the mere fact of Curiel's Mexican ancestry.

Perhaps. Perhaps Trump knew that the judge was a member of several quasi-racist supremacist groups and had expressed concern about how the result of another case would affect Mexico.

Brando said...

I don't think Ginsburg's unprofessional behavior here means "all judges are too biased to do their jobs right". Her behavior is a sign she should have stepped down a while ago (though her poorly reasoned opinions should have been our first clue).

The point is this--all judges have biases, as they are human. I'm sure Scalia had a personal opinion as to whether he wanted Bush or Gore elected. But anyone taking a job as a judge has to be able to acknowledge their biases and not let those biases affect their decision--Scalia had to apply the rule of law and only the rule of law to his Bush v. Gore opinion. The issue is one of professionalism, not bias.

Ginsburg, in speaking out and violating both the judicial ethics she's bound by (stating a public opinion favoring or disfavoring a candidate in an upcoming election) as well as the unwritten rule that judge's should be outside the fray of politics, makes us question whether she can remain professional enough to not let her anti-Trump bias affect her ability to do her job. Accordingly, she should resign.

Unknown said...

Oh yes, I forgot to sign my post asking that question for Ann; For whatever reason this blogging software marks me as "Unknown."

So, --Vance

Brando said...

"I'm willing to say I don't think Trump actually is an anti-Mexican bigot, but he needs to speak in a way that doesn't make it easy for his opponents to say he is."

He's not an anti-Mexican bigot, but he's perfectly willing to use bigotry to advance his goals. You speak as though he's not aware of what he's doing.

mccullough said...

The GOP Senate would approve Garland to fill Ginsburg's seat. Obama should announce her retirement and move Garland into her seat.

David Begley said...

Unknown @9:39

Excellent post.

The next step the Progs are going to take is to strip federal funds from BYU and Catholic universities for failing to allow same sex marriages on campus or denying same sex couples married student housing. I suggest the Libs target Marquette. Althouse can join the Marquette legal team and strike a blow for religious freedom. And sanity. Unless, of course, Hillary wins and she appoints some more political hacks like RBG.

n.n said...

Curiel ia a pro-immigrant, but really, mass exodus (especially illegal) of Hispanic people from Central and South America. His bias was overt, his prejudice may have been covert, but it could also be inferred from his opposition to pro-native (e.g. American, Mexican) policies. Unless, of course, Mexico et al want a mass exodus and America wants a mass displacement, and their abortion rites, too. Ironically, with the anti-native policies of this administration, the far left and far right, and the recent refugee crises, Curiel's activism has become secondary in America and Latin American nations.

Eric the Fruit Bat said...

When I was clerking, right out of law school, I once witnessed a judge (a woman) gushing with other women (two law clerks and a secretary) about shopping for shoes.

I got over it.

All the same, I'm guessing that it's not good PR for the Supreme Court of the United States of America to have one of its Associate Justices shooting her mouth off to the media about an upcoming presidential election as if she were no more than an everyday idiot sitting around the table after dinner and the wine has taken full effect.

chrisnavin.com said...

Also, as creatures led by notions of public sentiment, it's likely number 2 plus a little 'wasn't everyone taking about her retirement?'

Newspaperpersons often have a myriad of groveling to do and who they imagine their audience to be matters.

What's the latest public trend (how can I grovel/discover the latest fad for my opinion piece and help to control opinion on it?)

What will make me successful? (How can I do the above AND maximize professional advancement and personal success?)

The current incentives for a Newspaperperson at the Times trend Lefty PC...it's full Activist City '68 man.

Again, I expect many at the Times to 'settle' into an editorial worldview similar to that often found The Guardian. Hope I'm wrong.

Michael K said...

"If he doesn't, he's either inept or he's trying to dog-whistle to bigots."

Or, he is still learning the land mine distribution of presidential politics.

He seems to be a fast learner but a lot of his supporters can read the code. And they are not bigots.

gspencer said...

Maybe Ruth Buzzy G. sees the handwriting on the wall - viz, that the Donald has a good chance of becoming president - and she sees the imperative to do something, anything, to prevent that.

Maybe she'll even ask HH (for Harridan Hillary) for a prime time speaking spot at the DNC on Wednesday (July 27) night.

rhhardin said...

Seemed like a good post to me, sort of an exercise in inference.

Klavan just refers to the NYT with the homeric epithet "the former newspaper."

Bob Ellison said...

It's past time to retire the "dog whistle" meme.

Chuck said...

What a clod Trump is. He is the guy who pandered to legal conservatives (and of course he sort of had to, based on previous missteps and misstatements in his campaign) with his own politicized long/short list of possible Supreme Court nominees. To win votes and make a political story. And now Trump whines about politics on the Court.

David French at NRO has a great new column about how Trump -- instead of being a force against political correctness -- is "God's Gift to Political Correctness":

http://www.nationalreview.com/article/437733/donald-trump-political-correctness-progressive-prejudices-confirmed

David Begley said...

RBG should be impeached. Trump should make it a campaign issue. Nice diversion. And it calls attention to the fact that the federal judiciary has become politics by other means.

RBG complained about Trump not releasing his tax returns. RBG needs to undergo a mental competency test and then release the results.

Absolutely serious here. Thanks to the NYT starting the conversation.

rhhardin said...

Every Wednesday from 9am to 10am there's a morse code contest among members of a high speed morse code contest club, non-members allowed, and I pick one I haven't talked to before to see if the radio is still working. He was in Madison WI this morning. Contacts last about ten seconds. You have to move on to the next if you're going to win.

Pookie Number 2 said...

What a clod Trump is. He is the guy who pandered to legal conservatives (and of course he sort of had to, based on previous missteps and misstatements in his campaign) with his own politicized long/short list of possible Supreme Court nominees. To win votes and make a political story. And now Trump whines about politics on the Court.

Why does being a "clod" mean that Trump can't or shouldn't complain about unprecedented Supreme Court politicking?

coupe said...

Ginsburg is only doing what Micah Johnson did to the Dallas police. She is trying to murder the representative form of government, and institute the nirvana all communists aspire to: keeping the people peasants, while eating off of silver.

Trump is a threat to the peasant utopia. Congress has worked hard to destroy the middle-class, and redirect wealth to their committees for favored distribution.

You'll know it's over when they announce a 5-year plan.

I was going to say something rude, like I think Ginsburg's colostomy bag is leaking, but I won't say that because it might upset my daughter, who thinks women are never wrong.

Nonapod said...

it's important to keep voters believing that judges will be impartial and above politics

I wonder how many people truly believe that that's still the case (if it ever was). I have to assume that there's a whole slew of low-info voters who either 1) believe that Supreme Court Justices are truly impartial and neutral and essentially apolitical or 2) don't fully know or care what a Supreme Court Justice even is and therefore what impact they may have on their day-to-day lives

For case #2 people, RBG's statements will be meaningless if they ever even hear about them. For case #1, perhaps it may shatter some illusions.

Then there's people who know full well that most Supreme Court judges have either become or have always been fully political creatures and either think that's a bad thing or not. The more informed people on the left for the most part don't seem to have a problem with judges being political as long as they agree with the politics and the judges aren't so overt about it that they shatter the illusion of true neutrality.




Ken B said...

Excellent post. Although it is a dog-whistle to the logical.

CarlF said...

She did nothing wrong. She was just extremely careless.

David Begley said...

RBG has two children. One teaches law at Columbia. Time for "the talk" with mom.

Bob Ellison said...

Nonapod, if you polled citizens, especially pro-choice ones, on this question:

"What will happen if the Supreme Court reverses Roe v. Wade?"

(Well, first you'd have to explain what Roe v. Wade was...)

...but anyway, if you polled them on that, a great majority, I'd say probably 65% or so, would say it would outlaw abortion across the USA.

Curious George said...

mccullough said...
The GOP Senate would approve Garland to fill Ginsburg's seat. Obama should announce her retirement and move Garland into her seat."

That's not how it works. Even for Obama.

Ann Althouse said...
"I'm willing to say I don't think Trump actually is an anti-Mexican bigot, but he needs to speak in a way that doesn't make it easy for his opponents to say he is. If he doesn't, he's either inept or he's trying to dog-whistle to bigots."

Or maybe he's just trolling the MSM and other rube lefties. They make it a story, and a BIG Deal. They own it now. Trump comes in a blows them away with the detailed explanation. If Trump had said Curiel was a La Raza affiliate member the story would be spiked. Because only the hardest of the left are La Raza fans.

Michael K said...

"David French at NRO has a great new column about how Trump "

Read only by you #NeverTrumpers.

My subscription is over. After 35 years.

coupe said...

rhhardin said......morse code

When I moved up to the T-38, we began our instrument flight training, and you would have to identify the navigation site by it's morse code. To tell the truth, I had no interest in morse code, so I would tune in the radio and listen to the morse code. Then I would say to the instructor "yep, identified" and he would say very good.

Not once did I ever try to actually decode the dits and dahs. I just guessed it was right. One thing I noticed though was the sound. I just learned to associate the sound after about the first 10 times.

When I got my wings, my first instructor came over to congratulate me, and we got to talking and I admitted this story about the morse code. He laughed a bit and told me that only an idiot would waste time on that, and yes, that's the deal, you don't worry about the dits and dahs, you just listen to the whole word. Only a fool would try to decode the actual characters.

I felt more normal after that.

Michael K said...

"Or maybe he's just trolling the MSM and other rube lefties. "

Interesting thought,. I hope he is that sophisticated. He may be.

He just has to survive the GOP convention, and I don;t mean "politically."

I expect there are at least two assassination plots.

Hagar said...

The trouble with Judge Curiel was not his "Hispanic heritage," but his La Raza activism, and it is not unreasonable that Trump thought this might have something to do with his "anti-Trump" judicial rulings.

Michael K said...

I learned enough Morse Code to pass the beginners' ham license. And radio navigation aids broadcast their ID in Morse so I know the ones around the west coast.

GPS has made most of that ancient history,.

Original Mike said...

"RBG complained about Trump not releasing his tax returns."

Trump should offer to release his tax returns when Hillary releases her medical records.

Bob Ellison said...

coupe, it seems you were behaving a little like the amazing Shazam app.

boycat said...

The Never Trumpers are mobys in drag. Like Chuck.

Hagar said...

La Raza is so far out that people not from the Phoenix-Los Angeles stretch do not take it seriously, but in that area those people are very serious about it. They do think that anyone with "Hispanic heritage" should have automatic dual citizenship.

(This does ignore that "Hispanic" no longer equates to "Mexican" and that Mexico lately has become just the area between USA and the rest of the world that needs to be transited.)

Sebastian said...

""call[ing] her own commitment to impartiality into question." The Times tries to pass this off as Ginsburg "choos[ing] to descend toward [Trump's] level," but she's not joining Trump, she's proving him right: Judges are political, and that's a bad thing" You are correct. Slight amendment, option 3 or perhaps 2': NYT is strategically expressing disapproval, not that they actually disagree with anything RBG said or did, because it sees its own role as keeping up the charade. RBG's point is: we don't need no charades no more. Call it the Ginsburg/Tushnet proviso: we won. Con law is for suckers, Progressivism rules. Example, as if any were needed: RBG's comments on 2nd Amendment: we don't need to amend the amendment, we can just rule it "outdated."

"Trump should offer to release his tax returns when Hillary releases her medical records." And her "private" emails.

coupe said...

Michael K said...GPS has made most of that ancient history

To show how old I am, GPS was installed after I retired in 1993. We used the old Omega system for long range navigation. We would update our inertial nav manually with that, or TACAN positions.

Whenever the navigator put in the wrong numbers, we would know right away, as the autopilot would turn the plane. I would say "the plane is turning nav!" and he would say "Argh! I'm on it."

I asked him once where we would have ended up, and our being on the Arctic Circle chasing Bear bombers, he would say "someplace near Sydney, Australia". Sheesh, Steam Engine days.

Brando said...

"Or maybe he's just trolling the MSM and other rube lefties. They make it a story, and a BIG Deal. They own it now. Trump comes in a blows them away with the detailed explanation. If Trump had said Curiel was a La Raza affiliate member the story would be spiked. Because only the hardest of the left are La Raza fans."

I was under the impression Curiel was a member of a different La Raza group, the one that is basically an Hispanic-American lawyers' organization. As for "blows them away with a detailed explanation" I seem to recall he spent days simply saying "he's Mexican, and I'm building a wall!" and only coming up with this association (with the wrong La Raza group) later. As I said, I don't think he's a bigot, but he's certainly using bigotry to get ahead, which is pretty disgusting.

And beyond that, what purpose did this serve? Only to keep the story of Trump University in the news a bit longer. There's no defense of this from the "political smarts" standpoint, unless you think he really needed to shore up his support among people who think simply being of Mexican descent means being unable to act like a professional as a judge.

James Pawlak said...

I remember the Left's assault on Wisconsin's Justice Bradley as to her 2002 (?) essay/column against homosexuals.

Anyone who doubts/denies that judges and members of "independent" or "non-partisan" commissions/boards do not firmly hold to political/moral-religious beliefs is unworthy of any attention.

However, I do find it more-than-strange that that biddy would so insult SCOTUS and the People by inflicting those views on all.

Yancey Ward said...

NYT is in a tough spot- as I wrote on a previous post, the attempted defenses of Ginsburg deeply illuminated the hypocrisy all around when it comes to federal judges and their biases. Defending Ginsburg makes attacking Trump over Curiel practically impossible. I think, in the case of the editorial board at NYT, we may have found a degree of hypocrisy they can't easily explain away or ignore. They were hoisted on their own petard.

Gusty Winds said...

We should just stop going through all the BS confirmation hearings where these judges promise to reserve judgment until all the facts are in. The Courts can be just as effective at curtailing Liberty as they are at expanding it.

I'm like the 8 person court.

Bob Boyd said...

'You don't get to use "shorthand"'

Like Trump has a choice.

Michael K said...

We used the old Omega system for long range navigation. We would update our inertial nav manually with that, or TACAN positions.

Omega was useless for us but maybe that was just being on the surface. I had LORAN and Omega on my sailboat and we used to go long distances. Loran was fine within about 200 miles of the coast. It worked going to Mexico so there must have been stations along that coast. It was useless going to Hawaii and, while I thought it might be useful coming in to Oahu, it was useless.

Those (1981) were the days of celestial or SATNAV, which required big time source of juice as you could not turn it off. I found Hawaii with celestial even though it was overcast every day once we were in the Trades and Hawaii in July is the same latitude as the sun at noon.

My wife was flying to Hawaii with several fuel bladders as luggage when we were a couple of days out and the captain of the plane talked to us on radio as they went over. The delivery crew used fuel bladders on deck going home.

NorthOfTheOneOhOne said...

Hagar said...
La Raza is so far out that people not from the Phoenix-Los Angeles stretch do not take it seriously, but in that area those people are very serious about it

It's even farther out than that. I live in Phoenix and hear more about Gerald Maupin (the local Al Sharpton Lite) that I ever do about La Raza.

The Cracker Unknown said...

RBG didn't need to open her mouth for me to know exactly where her synpathies and biases lay. It's hardly news that the four women are lock-step statists.

who-knew said...

I'd just note that the NYT says " it's important to keep voters believing that judges will be impartial and above politics". Notice that they don't think it's important that judges are actually impartial and above politics, just that the rubes continue to believe it

Curious George said...

"Michael K said...
"Or maybe he's just trolling the MSM and other rube lefties. "

Interesting thought,. I hope he is that sophisticated. He may be."

Trump's a lot things, some negative. But stupid ain't one of them.

Hagar said...

Plus La Raza being based on the idea that the Aztec tribe resided somewhere north of the border in what is today the United States prior to the great drought of the 13th century, it is actually about ("Mexican") Indian heritage, not "Hispanic."

David Begley said...

The beauty of the impeach RBG movement is that the Right can relitigate the SSM case and all of her political writings. She has a long record.

Darcy said...

It's very important to keep voters believing...

We don't, anymore. Or rather, all but the brainwashed do not. Which is one of the reasons I believe Trump, whatever the outcome of his presidential run, has done America a good turn by running.

MadisonMan said...

it's important to keep voters believing that judges will be impartial and above politics

who-knew nails it.

Who knew!

Dust Bunny Queen said...

I go with option #1. Judges are 'supposed' to be neutral and apolitical in their decision making. It is really pretty hard to do this (be completely apolitical) but for Ginsburg to openly and blatantly express political opinions about Trump is to tear off the pretense that judges are NOT biased.

Trump's sister is a judge. Maryanne Barry is a Senior United States Circuit Judge of the United States Court of Appeals for the Third Circuit.

Imagine the hue and cry if she were to make disparaging public remarks about Clinton!!

coupe said...

Michael K said...Those (1981) were the days of celestial

Way off topic, but speaking of celestial, the Apollo computers didn't have much computing power, so the first thing the astronauts had to do was find out where they were. Only then could they blast off and rendezvous with the orbiter.

So they had a periscope that they aimed at three stars, and they passed these values down to Earth, where NASA then gave them coefficients from their mainframe computer to enter into the Apollo computer.

Yep, you guessed it, they could only find two stars. The third being blocked by one of the landing legs.

No problem, they found another star and NASA worked out the equation. I guess it all worked, as the orbiter made a fine catch. If they were wrong, they would have just arced over the top like a ballistic missile and returned to the moon like a SCUD missile. plonk!

Herb said...

so if somehow we end up with law suits from this election that get to the supreme court Ginsburg will have to recuse herself?

traditionalguy said...
This comment has been removed by the author.
traditionalguy said...

Trump is crazy as a fox. His SCOTUS nominee list has no Ivy League graduates. None.

As for the NYT telling truth , they are signaling that the Libs who have been angry since she refused to resign two years ago when she had cancer, are still mad at her.

If she had resigned as told, then Obama could have appointed her successor. But the brain shot old lady hung on and as a result Trump gets that appointment since Hillary looks now to be a loser. Ginsberg is angry at herself.

damikesc said...

Ginsburg, in speaking out and violating both the judicial ethics she's bound by (stating a public opinion favoring or disfavoring a candidate in an upcoming election) as well as the unwritten rule that judge's should be outside the fray of politics, makes us question whether she can remain professional enough to not let her anti-Trump bias affect her ability to do her job. Accordingly, she should resign.

I am curious where the cult of stare decisis is about this one? Are we obligated to honor precedent or can we ignore it and overturn it immediately if we aren't fond of it?

damikesc said...

Trump is crazy as a fox. His SCOTUS nominee list has no Ivy League graduates. None.

I'd vote for him for that alone. The Ivies have done enough damage.

Michael K said...

"where NASA then gave them coefficients from their mainframe computer to enter into the Apollo computer."

We had the immensely powerful HP calculator that used little plastic program memory strips to load celestial equations. I used a Teas Instruments digital watch as chronometer, Two sextants in case I dropped one. Latitude was tough with the overcast. Longitude was easy.

cubanbob said...

Trump just might win despite himself. RBG just gave him yet another opportunity to say I told you so. Imagine if he does win and nominates Ted Cruz as Scalia's replacement. RBG just might stroke out and then Trump gets another judge.

As for the NYT points one and two are not mutually exclusive, the paper could be in favor of both.

Brando said...

"I am curious where the cult of stare decisis is about this one? Are we obligated to honor precedent or can we ignore it and overturn it immediately if we aren't fond of it?"

Generally, or specifically in the case of a justice crossing the line in political involvement?

Fred Rawlings said...

Just remember that everything one side or the other does or says is about the election. NYT editorials. Obama speeches at funerals. House votes. Everything.

Original Mike said...

"Latitude was tough with the overcast. Longitude was easy."

I don't understand. Don't you need to see the sky for longitude as well?

rhhardin said...

I tried a bubble sextant in a light plane with no autopilot or electronics for that matter. There's serious difficulty taking a good sight while flying the plane.

Reducing it was even more out of the question but it didn't get that far.

Navigation as always proceeded by looking out the window.

rhhardin said...

The bubble sextant is still in the basement somewhere. An averaging Bendix model.

rhhardin said...

The bubble sextant worked okay at home. The LOPs were correct.

readering said...

I don't think the Times was thinking about Curiel, the Times was thinking about Bush v Gore.

It would be nice if Ginsburg retired on the first Monday in October. I'd say sooner, but we know the vacancy won't be filled this year. Let her rule on pending cert petitions gathered up over the summer and then retire.

coupe said...
This comment has been removed by the author.
Earnest Prole said...

“If the decision was made for what the author believes is the wrong reason — such as political preference — then reasons believed to be proper will be drummed up and belabored.”

Mencken’s phrase for this, prejudice made plausible, would make a good tag.

Steve M. Galbraith said...

Examine the substance - such as it was - of what Ginsburg said and you'll see that it sounds like little more than a blog comment at a liberal website. There's nothing expert or insightful in them. Nothing about how a Trump presidency would threaten or be a challenge to the rule of law, to the constitution, to the Court itself. Nothing expert or authoritative in them.

To me, that's as least as bad - if not more - then the fact that she thinks it's okay to express her opposition to one of the candidates for the presidency.

It's embarrassing for her on several levels.

Michael K said...

"I don't understand. Don't you need to see the sky for longitude as well?"

In the Trade Winds, the sky is clear during the day and clouds over just before sunset and clears just after sunrise, the two times you need the horizon. Longitude in the Pacific is easy because all you have to do is take two sun lines mid morning and mid-afternoon. The digital watch made it easy.

Latitude on Mexican races was easy because the sun was low (winter time) and noon was clear.

In Transpac, you are going to Hawaii, latitude 20 degrees north, in mid-July when the sun is at 20 degrees north. At noon the sun is right overhead and that is hard to do with a sextant, especially on a small boat (40 feet). The closer you get to Hawaii, the higher the sun and the harder the noon sight. I finally got one shot of Polaris through a hole in the over cast.

No, everybody uses GPS but in those days, SATNAV required a couple of amps and 24 hours a day as the satellites were not geostationary. Nobody in a boat smaller than 70 feet had one. Omega, for some reason, was useless.

If anyone is interested, here is a post with a video clip taken during the race. it is evening and the clouds are already gathering. We are changing to the heavier spinnaker because it blew hard at night. My crew, with one exception, was all kids under 22. My son was 16.

As you watch the clip (if anyone does) you can see the wind building in just the few minutes. At night we would get 40 and 50 knot squalls. It blew 20 to 25 all day.

Unknown said...

Speaking of embarrassing...

George W Bush dancing during the Dallas Memorial.

Michael K said...

Yes, it doesn't fit your narrative to enjoy "Battle Hymn of the Republic."

Darcy said...

@MichaelK

I found the criticism of Bush strange too! Wow. He got Michelle to smile, to boot. Haha. Anyway, loved his little joyful celebration.

Unknown said...

If Obama would've done that he would've been skewered. The hypocrisy, oh my.

Unknown said...

Granted, it was gracious of Mrs.Obama and President Obama to smile.

Darcy said...

No, Unknown, if Obama would have done that it would have meant he'd removed the perpetual stick up his ass and we'd mostly likely all celebrate it.

Also, Bush is a better dancer. ;)

Michael K said...

Too much God in that music to get Obama dancing.

Original Mike said...

Thanks for the answer, MK. Nice trophy. Congrats.

n.n said...

Well, at least they are not attacking Trump, as they did the justice who responded to Obama exploiting his captive audience. Blaming the victim is poor decorum.

Michael K said...

"Congrats."

Thanks. The one time I could get two weeks off and the only time I could go. We were very lucky with the weather. The year before and the year after, the race was very slow. We made 2400 miles in 11 days, 20 hours.

Isn't that more fun to talk about than politics ?

protestmanager said...

"The problem was that Trump seemed to infer bias from the mere fact of Curiel's Mexican ancestry"

So you think Sotomayor should never have been confirmed?

Because someone who claims that a "wise Latina" judge will make better decisions than an equally wise white judge is just the flip side of Trump. Both think the "Mexican ancestry" of a judge inherently biases the judge, Sotomayor just claims it's a bias to teh "good".

So, does Sotomayor not belong on the Court? Or was Trump's statement perfectly fine?

Michael K said...

Trump at times uses a blunderbuss when a sniper rifle would be better. Still he was largely correct to comment on that judges' bias.

"Inartful" as the lefties say when Hillary lies.

Unknown said...

Doesn't this post cry out for a "Ginsberg has dementia" tag? No one has seemed to ask that but why would a sitting judge make such a foolish, overtly, political, statement? I get it that liberals are losing it and they are panicking, but garbage like this helps undermind whatever institutions we have left standing at this point.

TWW said...

"...it's important to keep voters believing that judges will be impartial..."

Perhaps the most cynical clause I have ever read from the NYT editorial Board.

damikesc said...

To paraphrase Instapundit, these people don't seem to realize that their institutions can be damaged easily and cannot be rebuilt easily.

The FBI has been tarnished under Obama. Ditto the Secret Service. Now the SCOTUS.

Steve M. Galbraith said...

"The FBI has been tarnished under Obama. Ditto the Secret Service. Now the SCOTUS."

Justice, Defense, HHS (the Obamacare roll out)...it's a rather long list. It didn't start with this administration but it seems to have accelerated during it.

It's ironic that the people who most believe in government have also been the ones undermining it the most.

Sydney said...

Has a Supreme Court Justice ever been impeached? And what kind of offense would it take to impeach them?

Sydney said...

Samuel Chase was impeached on grounds of letting his partisan leanings affect his court decisions. But he was acquitted by the Senate, so it didn't do any good.

Chuck said...

Trump is crazy as a fox. His SCOTUS nominee list has no Ivy League graduates. None.

That is false. The first name on Trump's list (the one I saw, anyway) was Eighth Circuit Judge Stephen Colloton of Iowa. Who went to Princeton as an undergrad and Yale Law. And while not Ivies, there were two names who were University if Chicago, two University of Michigan and one Northwestern.

It is no big deal, but it is always nice when I can tell "traditionalguy" and "damikesc" that they are both wrong. It's a zero-sum game, this business of right and wrong and I am the sort of chap to remind you about it.

traditionalguy said...

@Chuck...Thanks for the details. The first stories on Trump's list that I saw did not show Princeton and Yale, as I recall. But Princeton gets Colloton the Reformed Calvinist Exemption.

Sebastian said...

@damikesc: "The FBI has been tarnished under Obama. Ditto the Secret Service. Now the SCOTUS." What do you mean, "tarnished"? Weaponized, turned into a tool, mobilized for the cause. RBG was just a bit more blatant than Koskinen, Lynch, Rice, Comey, et al. NYT would prefer they keep the mask on a bit longer.

Szoszolo said...

Curiel is a member of the San Diego La Raza Lawyers Association, which is affiliated with the Hispanic National Bar Association. The HNBA has publicly called for a boycott of all of Trump's businesses because of his stance on illegal immigration.

In light of those specific facts, it's not unreasonable to think that Curiel might harbor some judicial bias against Trump personally. Curiel should recuse himself.

Chuck said...

Szoszolo said...
Curiel is a member of the San Diego La Raza Lawyers Association, which is affiliated with the Hispanic National Bar Association. The HNBA has publicly called for a boycott of all of Trump's businesses because of his stance on illegal immigration.

In light of those specific facts, it's not unreasonable to think that Curiel might harbor some judicial bias against Trump personally. Curiel should recuse himself.


I love all of you Internet Lawyers. Your clever research has turned up an issue that Trump's gold-plated counsel at O'Melveny & Myers couldn't figure out, at about $750 an hour. Or at least I should presume that they have overlooked the issue. Because you must be right; and they must have just overlooked your obvious but cleverly-assembled legal research. You should contact O'Melveny & Myers about an associate position in their litigation department.

Surely, if they had known what you know, they would have filed a motion to disqualify Judge Curiel, and to have the case reassigned. But they have not done that. And no serious legal scholar or legal analyst has suggested that they should file such a motion. Virtually all of them think that such a motion would be futile, unsuccessful, and might result in personal Rule 11 sanctions against the lawyers filing the motion.

But you -- you, Szoszolo -- have figured it out, where all the others have gotten it wrong. You are amazing. You are being wasted, in whatever career you are laboring. You need to become LA's new edgy star litigator to advise Daniel Petrocelli on how to defend Mr. Trump.


Chuck said...

lol. Trump just questioned Ginsburg's "mental capacity." Lol; the ol' Trumpster might just be right. Now we'll see where this gets Trump. And particularly with the Friends of Notorious RBG.

Trump also just said that he is "under order" not to release his tax returns. That is going to produce a whole new round of questions about Trump and his taxes. "Trump taxes" will be the new storyline, again. And I really want to know exactly how and when Trump has been "ordered" by the IRS not to share his already-filed tax returns with the public. I don't buy it and I don't think anyone will buy it.

M Jordan said...

NeverTrumpers are going to regret their written words on him. He's going to win. Already there is a seismic shift in the GOP towards him. The platform agreed on yesterday was a big Amen to the Donald and a clear sign to NeverTrumpers to Watch it. Reince Priebus' recent statements fortify this view.

Meanwhile, Maureen Dowd clearly hates Hillary and clearly gets a kick out of Trump. Are the editors being influence by her? It appears a possibility.

David French, Rich Lowry, Jonah Goldberg, et al better do some quick stepping real fast or they are headed to Outer Darkness. It's probably too late already but everybody loves a winner so they might be still able to sneak aboard the Trump Train.

Guildofcannonballs said...

"Reince Priebus' recent statements fortify this view."

If Trump wins in 2016, that would mean 2010, 2014, and 2016 would be historically the greatest politically successful period the GOP has ever known, but of course my history doesn't go past 1980.

Still. Obama would have the coattails of something funny Laslo might say about coattails, and not funny "you so perfect we gosh darn can't think of any jokes about you Sir Lightworker the Fair" but "Ha that old ass Ford isn't coordinated and Reagan's daughter hates him HA HA HA HA HA HA HA HA" funny that people ate up back in the day.

Conservatives: With a Trump win, you (we) can rightly claim Obama's fundamental transformation of America was to remove elected Democratics and replace them with the GOP, especially at the state level. We can all donate to Althouse for her efforts to fundamentally transform the Democratics from winners to losers.

Without Trump winning though, we ain't got dick.

Michael K said...

Virtually all of them think that such a motion would be futile, unsuccessful, and might result in personal Rule 11 sanctions against the lawyers filing the motion.

More likely than your brilliant analysis, they might have believed it would piss the judge off even more.

I don;t know why Trump did it.

Rex said...

It seems pretty clear to me that folks don't know (or remember) that Bush v. Gore was decided on a 7-2 vote; only the remedy was decided on a 5-4 vote. In other words, 7 justices agreed that Gore's attempted approach violated the Equal Protection clause, but only 5 agreed to say, enough already, stop!

Steve M. Galbraith said...

If Trump had ANY political acumen at all he could use the Ginsburg controversy to his benefit by citing it as an example of the type of liberal abuse of the law that Hillary engages in. That is, the constitution and laws can be ignored when it benefits liberals. Ginsburg is just openly saying what she secretly practices when making her decisions. Raw politics and no principles or limits.

Tie the two together.

Michael K said...

" 7 justices agreed that Gore's attempted approach violated the Equal Protection clause, but only 5 agreed to say, enough already, stop!"

The 7 -2 verdict was on the issue of the Florida Supreme Court, dominated by Democrats, changing Florida election law after the election,

At the time, I thought the second decision was probably a mistake. The Democrats held up Bush's appointments until after 9/11 and blamed him for the disaster that was really Clinton's.

Maybe some day after Hillary is gone, we will be able to see "The Path to 9/11" again on TV.

Iapetus said...

People are incensed over Donald Trump beating up on judges, yet Barack Obama got a standing ovation and enthusiastic applause from Congress when he ragged on a captive SCOTUS audience at his State of the Union address: https://youtu.be/BiDiHX50zT4
"With all due respect to the separation of powers" Obama said as he verbally spanked members of the Court like misbehaving children before the entire nation. I'd say the wide approval given Obama's untoward behavior gives DJT license to say whatever he wants, whenever he wants, however he wants about the Court.

Chuck said...

lapetus:

Yours is a richly ironic comment.

First, the SOTU cameras focused on the DEMOCRATS standing to applaud the President's risible attack on the Citizens United majority. The cameras went to the members of the Court in attendance, and they happened to be seated in front of the Senate Democrats (you see the odious Dick Durbin and Harry Reid jumping to applaud, among the first to do so). Look carefully and you see Mitch McConnell and the entire GOP leadership sitting.

Second, Obama didn't escape criticism for his remarks. Obama's fiercest opponents could be found in all of the conservative places where opposition to Donald Trump has remained hardest; the National Review; the Weekly Standard; Republican leadership.

Third, since you concern arises out of Citizens United, it is a truly weird conflation with Donald Trump, since alone among Republicans, Trump has mouthed a lot of vague and poorly-reasoned criticism of the Citizens United decision.

http://www.bloomberg.com/politics/articles/2015-08-04/trump-the-developer-loves-low-interest-rates-trump-the-candidate-sees-a-bubble-

{NB - Jeb Bush, in what I regard as the low point of his campaign, also mouthed criticism of Citizens United. Jeb is as far removed from Republican leadership on this as is Trump. I won't give Trump any credit, in his regular ongoing stupidity, for an exceptionally rare statement of stupidity from Jeb Bush.}

Szoszolo said...

"More likely than your brilliant analysis, they might have believed it would piss the judge off even more."

Chuck thinks lawyers are supposed to just ... do stuff, you know, legal stuff, like all the time. They're not supposed to think about the possible consequences and counsel their clients accordingly.

A lot of people would be surprised at how often lawyers don't file "obvious" motions and don't make objections at trial for fear of pissing off the judge or the jury. I have absolutely no doubt that Trump's lawyers considered it and decided that the potential disadvantages outweighed the potential benefits.

RonF said...

I wonder what she would say if one of the more conservative justices came out and said that he supported Trump so that it might become possible to overturn Roe v. Wade - which, unlike the case she references, did not address a right spelled out in the Constitution.

TWW said...

The Notorious RBG has apologized for the comments she made last week directed at Donald Trump. These remarks were not only, in her words, ‘ill-advised’ they have done serious, perhaps lasting damage to the frail-held belief that the Supreme Court is above politics; it is about the rule of law. I’m glad she apologized but I fear the damage is done and irreversible.

In her comments about Trump she also made some other ill-advised comments in respect of recent Supreme Court decisions: Heller, Citizens United.

But these are not the reasons I believe RBG should resign.

The reason she should resign is because she said if he were elected, she might have to move to New Zealand.

Okay, a throw away line you say. But consider:

In doing so, she firmly moved herself into the camp of Cher, Barbra Streisand and other Faux Celebrities who have threatened, but have not followed up on their desire to leave the United States. It’s bad enough that this places her comments in the category amongst ‘silly’, not serious, individuals with a lot of money, a big carbon foot print and a little brain.

But for an active Supreme Court Justice to state for public record that she is actively thinking of moving to a foreign Country if her candidate for President is not elected is beyond the pall.

Saddest of all is that RBG has so little faith in this great country, a country that has survived the War of 1812, a Civil War, two World Wars, the Korean Conflict, the Vietnam War, the invasion of Granada and post-world War II Soviet aggression, that she believes it is not strong enough to survive Donald Trump? Or Hillary Clinton for that matter?

Hey, Ruth. As they say, don’t let the door hit you on the way out.

So, if you really intend to move to NZ, and can no longer pledge allegiance to the USA, please resign so that we don’t have to deal with your messes after you leave.

Chuck said...

Szoszolo, you seem to be particularly immune to subtlety, so I am going to make it plain to you; the Trump University defense counsel at O'Melveny & Myers did not file a motion to disqualify Jusdge Curiel is because no such motion would work. Such a motion has no merit. It would be denied, by the Chief Judge of the District. That denial would be upheld, by the Ninth Circuit. It is such a blatantly bad motion, Trump's counsel would know that they'd merely be embarrassed by the outcome, and might just get sanctioned.

And on your own, you can think and write any goddamned stupid thing you wish.